South Ayrshire Council v Aitchison

For a collective grievance, the employees on whose behalf it is raised must be identified in writing when the grievance is intimated, so that the employer can know which employees are involved and seek resolution before litigation.

The test is applied at the time of intimation, not retrospectively by checking which employees later present tribunal claims. A list supplied on a computer disc will not satisfy the requirement where, read with the grievance letter, it does not identify the relevant employees. Obiter, the statutory context would also exclude treating delivery of a computer disc or USB stick as communicating names in writing.

UNISON purported to raise a collective equal pay grievance on behalf of South Ayrshire Council employees by letter dated 11 August 2006. The letter referred to a Schedule of employees’ names, employment periods and related information, but no Schedule was enclosed. A computer disc containing approximately 2,500 names, including men’s and women’s names, was supplied instead.

The Employment Tribunal held that the statutory grievance requirements had been satisfied because the names of the subsequent claimants appeared on the disc. The Council appealed, arguing that the names had not been specified in writing and that the disc did not identify the employees covered by the grievance. The central issue was whether paragraph 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004 had been complied with.

The appeal was allowed and the claims were dismissed because the Employment Tribunal lacked jurisdiction to entertain them.

1. Section 32 of the Employment Act 2002 barred presentation of the equal pay claims unless the statutory grievance requirements had been complied with. Under paragraph 9 of the Employment Act 2002 (Dispute Resolution) Regulations 2004, an appropriate representative had to write to the employer setting out the grievance and specify in writing the names of at least two employees, including the employee having the grievance.
2. Consistently with Alitalia Airport SpA v Akhrif [2008] ICR 813, the representative had to identify in writing each employee intended to be covered by the collective grievance. A later identification could be possible, but it had to occur within the statutory time limit.
3. The relevant question was whether, when the grievance was intimated, the employer could reasonably identify the employees on whose behalf it was raised. The disc did not contain the Schedule referred to in the letter. It included men’s names, omitted employment periods and contained lists of jobs without attaching them to names. An employer could not reasonably conclude that the disc identified the employees with equal pay grievances.
4. The requirement was simple rather than technical. The Employment Tribunal erred by testing compliance retrospectively, by reference to the employees who later presented claims.
5. The Tribunal did not need to decide whether a disc containing the correct Schedule would constitute writing. However, the statutory purpose and short period for conciliation indicated that a disc or USB stick would not satisfy the requirement, since it might be corrupted or unreadable and the employer’s time would continue to run.

• Employment Tribunal, Glasgow: judgment registered on 17 June 2010, finding that the claimants had complied with the statutory grievance requirements.
• Employment Appeal Tribunal: appeal allowed and the Tribunal’s judgment replaced with a judgment dismissing the claims for want of jurisdiction.